in Environmental Management
of Mining Projects: The Role
of Negotiated Agreements
CIARAN O’FAIRCHEALLAIGH & TONY CORBETT
Department of Politics and Public Policy, Griﬃth University, Brisbane, Australia
ABSTRACT The principle that indigenous people should participate in the environmental
management of resource projects on their traditional lands is increasingly recognised by
international law and institutions. Negotiation of agreements between indigenous groups
and resource developers represents one way in which that principle can be given eﬀect.
However, virtually nothing is known about the environmental provisions of negotiated
agreements or their eﬃcacy in enhancing indigenous participation. This article examines
environmental provisions of agreements involving Aboriginal landowners and mining
companies in Australia. It concludes that while agreements certainly have the potential to
enhance Aboriginal participation in environmental management, a majority do not have
this eﬀect, reﬂecting the weak negotiating position of many Aboriginal peoples in their
dealings with mining companies.
Until the late 20th century indigenous peoples were excluded from any
signiﬁcant role in environmental management of resource development on their
traditional lands (Prokhorov, 1989; Albert, 1992; Borrows, 1997; Wilson, 2002;
Caruso et al., 2003). In recent decades indigenous peoples have fought hard to
establish such a role, on the basis that it is critical in allowing them to fulﬁl their
custodial obligations to protect their traditional lands and so their identities,
cultures and societies; and on the basis that protection of their traditional estate
cannot be safely entrusted to governments or corporations (Banks & Ballard,
1997; Borrows, 1997; Harper & Israel, 1999; Akpan, 2000; Weitzner, 2002).
The right of indigenous people to be involved in environmental management
of projects that aﬀect them has won increasing recognition in international
Correspondence Address: Ciaran O’Faircheallaigh, Department of Politics and Public Policy,
Griﬃth University, Nathan, Queensland 4111, Australia. Tel.: 61 7 38757736; Fax: 61 7 38755363;
Vol. 14, No. 5, 629 – 647, November 2005
ISSN 0964-4016 Print/1744-8934 Online/05/050629–19 Ó 2005 Taylor & Francis
conventions and in the policies of international institutions. For example the
International Labour Oﬃce’s ILO Convention 169 Concerning Indigenous and
Tribal Peoples in Independent Countries (1991) states that indigenous peoples
have the right ‘to participate in the use, management and conservation’ of
natural resources on their traditional lands, and that governments must
establish procedures to consult them before allowing exploitation of such
resources (Article 15). The United Nations Draft Declaration on the Rights of
Indigenous Peoples (1993) recognises the rights of indigenous peoples to ‘their
lands, territories and resources’, the contribution indigenous knowledge can
make to proper management of the environment and the right of indigenous
people to ‘control the total environment of the lands . . . which they have
traditionally owned or otherwise occupied’ and ‘to determine and develop
priorities and strategies for the development or use of their lands’ (Preamble,
Articles 26, 30). The World Bank requires that projects it helps to ﬁnance must
devise and maintain mechanisms ‘for participation by indigenous people in
decision-making throughout project planning, implementation and evalua-
tion’, and must have development plans that give ‘full consideration to the
options preferred by the Indigenous people aﬀected by the project’ (World
Bank Operational Directive OD 4.20 (1991), Articles 14(a), 15(d)). More
broadly, the Bank recognises that eﬀective environmental management can-
not be achieved without substantial input from civil society, including
indigenous peoples (Davy, 1998; see also World Commission on Environment
and Development, 1987).
However, while the need for indigenous participation is widely recognised in
theory, practice falls far behind principle. To the extent that indigenous people
do participate in environmental management, this is often the result of conﬂict
that results from an initial failure to involve them. Indigenous communities
must often take direct action in the form of litigation, protests, blockades and
in some cases violence before corporations and governments allow opportu-
nities for their involvement (Banks & Ballard, 1997; Castro & Nielsen, 2001;
Wilson, 2002; Caruso et al., 2003). These opportunities are often episodic. They
may occur only during processes designed to determine whether a project
should proceed (such as environmental impact assessments), but not continue
into the operational phase of resource development (Geisler, 1993); or they
may occur only after fundamental decisions regarding the nature of
environmental management regimes have already been made (Banks &
Ballard, 1997). Additional problems arise from limited capacity for participa-
tion at the local level, which constrains the ability of indigenous groups to grasp
the opportunities that are available (Davy, 1998).
During recent years new and concrete opportunities for indigenous
participation have been created through the negotiation of agreements between
indigenous groups and resource developers operating on their traditional
lands. Such agreements, which typically deal with a range of physical, cultural,
social and economic issues associated with resource development, are now
common in the mining sectors of industrial nations such as Canada, Australia
630 C. O’Faircheallaigh & T. Corbett
and the USA (see, for example, International Council on Mining and Metals,
1999; O’Reilly & Eacott, 1999; Sosa & Keenan, 2001; Langton et al., 2004;
O’Faircheallaigh, 2004a, b). They are also beginning to occur in other industry
sectors and in less developed countries (Banks & Ballard, 1997; Brew, 1998).1
Agreements usually last for terms that are expected to cover the whole of
project life, and in principle they oﬀer an opportunity for systematic and
ongoing participation by indigenous peoples in the environmental management
of resource projects on their traditional lands.
However, while scores, perhaps even hundreds, of such agreements now
exist, virtually nothing is known about the nature or eﬃcacy of the environ-
mental provisions they contain, or indeed whether they contain any such
provisions. In part this reﬂects the fact that many agreements are of recent
origin and there has been limited time to analyse them, but a more signiﬁcant
factor is the common practice of including conﬁdentiality provisions that
prevent parties to agreements from divulging their contents.
We examine the potential of agreements to facilitate indigenous participation in
environmental management of resource development by analysing a large number
of agreements negotiated during recent years in Australia between Aboriginal
peoples and developers of mining projects.2
Virtually all of the agreements we
have analysed are conﬁdential, and to maintain conﬁdentiality we do not identify
provisions of individual agreements. Rather we develop a scale that allows an
evaluation of the eﬃcacy of provisions in terms of their potential to allow
indigenous participation. The agreements are then analysed as a group, allowing
conclusions to be drawn about their ability to facilitate Aboriginal participation.
The analysis indicates that the potential of agreements is considerable, but that to
date that potential has generally not been realised in Australia.
We begin by brieﬂy discussing the history of Aboriginal involvement in
environmental management in Australia, then examine the broader rationale for
negotiation of agreements between Aboriginal peoples and mining companies.
Aboriginal Peoples and Environmental Management in Australia
Until the 1970s Aborigines were systematically excluded from any signiﬁcant role
in environmental management in Australia for two main reasons. First, land
ownership and resource management were based on the legal principle of terra
nullius, that the land belonged to no one prior to European settlement. Central to
terra nullius was the assumption that Aborigines did not exploit or improve land
and thus did not manage resources, which European colonisers took as
justiﬁcation for their appropriation of land in all but arid central Australia and
the monsoonal north. While they never relinquished their custodial responsi-
bilities to manage their country, dispossession, population decline and removal to
reserves left many Aboriginal peoples largely powerless to exercise those
responsibilities (Chase, 1990; Howitt, 2001).
The second basis of exclusion involved the denial to Aboriginal peoples,
until the 1960s, of political and economic rights. Denied the right to vote, to
Indigenous Participation in Environmental Management 631
organise, to make their own decisions about where to travel and to live, to
retain and/or control the wages they earned, Aborigines were disenfranchised
so that it was impossible for them to assert their interests eﬀectively across
the whole array of policy issues, including environmental management
(Chesterman & Galligan, 1997; Kidd, 1997).
Change occurred during the 1960s and 1970s as Aborigines gradually gained
citizenship rights, allowing them access (at least in principle) to existing
administrative and legal processes provided by mining legislation and the
operation of mining wardens’ courts and to newly introduced environmental
management and cultural heritage legislation. Aborigines fought hard to have
their interests recognised and their voices heard, especially when large resource
projects were being developed on their land. However, in general state and
Commonwealth governments responded, at both a policy and administrative
level, by rejecting any notion that Aboriginal people had a legal interest in land
or any particular right to inﬂuence decisions on its management and use
(Chase, 1990; Dixon, 1990; Howitt, 2001).
Further changes have resulted from the introduction of state or territory
legislation conferring or recognising Aboriginal interests in land (mainly of
relevance in the Northern Territory and South Australia) and particularly the
High Court’s 1992 Mabo decision and the introduction of the Common-
wealth Native Title Act 1993. The High Court rejected the doctrine of terra
nullius, recognising that Australia’s indigenous people owned the land when
the ﬁrst settlers arrived. It found that indigenous ‘native title’ rights in land
still survive if they have not been validly extinguished by government, and if
the indigenous peoples concerned can demonstrate rights and interests in the
land under traditional law and custom, and continued observance of the laws
and customs deﬁning their ownership of the rights and interests claimed
(French, 2003). The Native Title Act created procedures to allow surviving
native title rights to be recognised, though to date in only a handful of the
hundreds of claims lodged under the Act has native title been determined to
exist. However, the recognition of native title has generated a wider discourse
of ‘co-existence’ in relation to land and resource management, and there is a
greater tendency for Commonwealth, state and local government to seek
indigenous input into the development of land management policies and
programmes (Langton et al., 2004).
Considerable barriers remain to eﬀective indigenous peoples’ participation in
environmental management of their traditional lands. First, many of the
administrative and legal avenues that are in principle open to them may be
culturally alien and are costly, in part because access to specialist technical
expertise is a prerequisite for eﬀective participation. Second, indigenous parties
may encounter diﬃculties in establishing their ‘standing’ in relation to speciﬁc
environmental issues or in particular administrative or legal forums. This can
be a particular problem where land has been permanently alienated (as has
occurred in much of eastern, southern and south-western Australia) or where
native title rights have yet to be determined.
632 C. O’Faircheallaigh & T. Corbett
Third, the relevance and value of indigenous knowledge and interests are
often downplayed in environmental assessment and planning processes.
Indigenous knowledge is experiential, intuitive and above all holistic, denying
neat boundaries between the physical, cultural and spiritual. In these respects it
diﬀers in fundamental ways from technical or ‘scientiﬁcally rational’
approaches to environmental management, which results in a tendency to
dismiss indigenous perspectives as ‘irrational relics of an earlier age’ (Lane &
Cowell, 2001, p. 157; see also Suchet, 1996; Brody, 2000). Engineers and
planners who are epistemologically opposed to indigenous understandings of
the world are prominent and powerful in environmental planning and impact
assessment (Chase, 1990; Lane & Cowell, 2001). This reluctance or failure to
recognise the legitimacy of other forms of knowledge can render Aboriginal
interests in land and resources invisible, a tendency that can be re-enforced by
the practice, standard in Australia, of environmental impact assessments being
undertaken by consulting ﬁrms retained by the project proponent (Lane &
Fourth, environmental assessment and management processes in Australia
occur within a state institutional culture where European notions of progress
and an ideology of developmentalism are dominant. This has an impact at the
local level, such as at Weipa in western Cape York, where the long-term
physical and economic dominance of one of the world’s largest bauxite mines
has ‘marginalised and smothered [Aboriginal] peoples’ experiences and stories’
(Suchet, 1996, p. 201). Developmentalism is also dominant throughout the
various tiers of the state institutional framework, with the result that co-
ordinating state agencies place a higher value on the representations of
resource developers, and in so doing blur the line between government as
regulator and as proponent acting on behalf of the developer (Lane & Cowell,
2001). At a political level, government ministers also adhere to a development
ideology, and planning (and project approval processes generally) occurs
within a political context of pressure for projects to be ‘fast-tracked’ through
‘black and green tape’ (Lane & Cowell, 2001, p. 161).
In summary, ‘interaction of political, cultural, economic and geographic
factors impedes and sometimes prevents eﬀective Aboriginal participation in
the political processes that determine land and resource use’ (Lane & Cowell,
2001, p. 157). Decision makers, motivated primarily by the economic beneﬁts
supposedly associated with mineral development, and operating within a
cultural framework that devalues indigenous knowledge and values, tend to
ignore, overlook or misinterpret indigenous perspectives (Chase, 1990; Lane,
1997; Howitt, 2001; Lane & Cowell, 2001).
A ﬁfth and critical obstacle to Aboriginal participation in environmental
management involves the fact that virtually all avenues for their involvement
(including general opportunities for public participation) occur through the
environmental assessment and project approval processes. Once a project has
been approved, opportunities for ongoing participation in its environmental
management are minimal or non-existent (Sindling, 1999). The general
Indigenous Participation in Environmental Management 633
presumption is that environmental management is a matter for the project
operator and government regulators. Aboriginal people have little capacity to
intervene if they believe that environmental risks not identiﬁed through initial
environmental assessment processes are likely to emerge; that relevant
legislation and regulation are failing to prevent environmental damage; that
laws or regulations that could prevent damage are not being enforced; or if
they hold knowledge whose application could result in superior environmental
outcomes (Suchet, 1996). This lack of opportunity for ongoing engagement in
environmental management is fundamental for indigenous peoples who have
responsibilities for protecting country that, derived from indigenous law and
custom, continue throughout a project’s life.
Can Aboriginal people overcome these obstacles to their eﬀective participa-
tion in environmental management by negotiating agreements directly with
Negotiated Agreements: Rationale and Context
Agreements between Aboriginal people and mining companies in Australia are
negotiated within a variety of legal, administrative and policy contexts. Their
speciﬁc provisions vary widely but, at a general level, all tend to have a
common rationale. They are legally binding instruments that provide for the
Aboriginal parties to provide their consent and/or support for mining on their
traditional lands. In return, the Aboriginal parties receive commitments from
developers designed to mitigate the potentially harmful eﬀects of mining on
their culture, society and environment,3
and to enhance their potential
economic beneﬁts from mining and associated activities, usually through
monetary payments and/or employment, training and business development
Negotiated agreements typically emerge within three distinct legal/admin-
istrative contexts. The ﬁrst results from legislation that provides for recognition
of Aboriginal ownership of land and mandates that mineral development
cannot proceed in the absence of agreement between Aboriginal landowners
and developers. The Aboriginal Land Rights (Northern Territory) Act 1996 is
the clearest example of such legislation in Australia, and a substantial number
of agreements have been negotiated under its terms. A similar legal context at
the state level is created by Queensland’s Mineral Resources Act 1989. This
requires applicants for mineral leases on Aboriginal reserve lands to seek the
consent of the relevant Aboriginal trustees, which creates an opportunity for
the latter to negotiate with the developer conditions under which they are
prepared to grant their consent. If the Aboriginal trustees refuse to consent,
their refusal can be overridden by the Governor in Council, a possibility that
has not arisen to date because the Aboriginal communities and mining
companies concerned have reached negotiated outcomes.
The second context arises from legislation that creates an opportunity for
negotiation of agreements, but allows mining to proceed in the absence of
634 C. O’Faircheallaigh & T. Corbett
consent from Aboriginal landowners. The Native Title Act 1993 is the most
important example, and a majority of mining agreements concluded during
the last decade have been negotiated under its terms. The Native Title Act
creates a ‘right to negotiate’ for native title holders or registered native title
claimants in relation to certain proposed actions contemplated by govern-
ment (such as the issue of mining leases to resource developers), referred to in
the Native Title Act as ‘future acts’. A minimum negotiation period of six
months is set during which parties must negotiate in good faith to seek
agreement. If agreement is not reached in this time frame, either party can
elect to go to arbitration before the National Native Title Tribunal (NNTT).
The NNTT can refuse to grant a mining lease, grant a lease without
conditions or grant a lease subject to conditions. The prospect of having a
lease application refused, or onerous conditions attached to a lease, might
create a strong incentive for developers to reach agreement during the six-
month negotiation period, but the NNTT has not, to date, refused to grant a
single mining lease application that has been referred to arbitration, and has
generally tended not to attach onerous conditions to leases it has decided
may be issued.
The NNTT cannot, under the terms of the Native Title Act, attach a
condition to the grant of a lease that involves payments related to the value of
minerals or the proﬁts won from a mining lease, whereas such payments can be
included in any agreement negotiated between the parties. It can be argued that
this places native title claimants under considerable pressure to reach
agreement, whereas developers face no such pressure given the strong
likelihood that the NNTT will grant them a mining lease if they fail to reach
agreement and the matter goes to arbitration.
A third context involves situations in which there is no legal requirement on
developers to negotiate with Aboriginal traditional owners, usually because
companies already hold mining leases issued prior to the High Court’s Mabo
decision, but where they choose to negotiate agreements as a matter of
corporate policy. A number of such ‘policy-based’ agreements have been
negotiated or are being negotiated by subsidiaries of Rio Tinto, which made a
decision in the mid-1990s to seek to establish positive relationships with all
indigenous communities in the vicinity of its major mining projects. In regions
of Australia where Aboriginal people have continued to occupy their
traditional lands (predominantly in north and central Australia) and have
established strong land-based organisations such as regional land councils,
policy-based agreements can generate outcomes for Aboriginal landowners at
least as favourable as those arising from a legal requirement for developers to
negotiate (see below).
The speciﬁc legal context in which agreements are negotiated has important
implications for the bargaining position of Aboriginal parties. Most obviously,
the requirement for developers to achieve agreement with traditional owners
under the Aboriginal Land Rights (Northern Territory) Act 1976 places them
in a strong bargaining position. Conversely, it can be argued that the time
Indigenous Participation in Environmental Management 635
constraint on negotiations and the arbitration provisions of the Native Title
Act reduces the bargaining power of native title parties. Bargaining positions
are of course inﬂuenced by other matters, including the presence or absence of
commercial pressures on the developer to secure early approval for leases, the
ﬁnancial, technical and organisational resources available to the Aboriginal
parties and the degree of cohesiveness displayed by Aboriginal organisations
Criteria for Analysing Environmental Provisions of Indigenous – Developer
In terms of indigenous interests, environmental provisions of agreements can be
regarded as positive to the extent that they facilitate and encourage indigenous
participation in environmental management. By ‘indigenous participation in
environmental management’ we mean the capacity of indigenous people, in
relation to mineral development on their traditional lands, to directly shape the
way in which environmental issues and impacts are identiﬁed and deﬁned and
the manner in which such issues and impacts are addressed over the project life
cycle, from project design through project operation, to project decommission-
ing and rehabilitation. Use of the term ‘directly’ is important in this deﬁnition.
Responsibility for protecting the viability and sustainability of their traditional
waters and lands is not something that indigenous peoples can delegate to
others, such as government regulators or company environmental staﬀ (Brody,
2000; Randall, 2003). Indigenous people have little faith in the inclination or
ability of mining companies or governments to protect their ‘country’. Only by
themselves having a major say in environmental management can they ensure
that adverse eﬀects on country are minimised. Thus the central purpose of
including environmental provisions in negotiated agreements is to place
indigenous people themselves in a position where they can ensure the protection
of their ancestral estates.
To adopt this starting point is not to assert that environmental protection is
a goal held equally by all indigenous people. Various groups within an
indigenous community may diﬀer in their attitudes to the trade-oﬀs between
environmental and other values that inevitably occur in real-world negotiations
(Trigger, 2000). Diﬀerent people may view quite diﬀerently, for example, an
agreement that oﬀers strong environmental protection but does little to
generate additional economic activity. However, this does not change the fact
that if a position is being established on environmental provisions, central
emphasis will be placed on maximising indigenous inﬂuence over environ-
Thus Table 1 presents a scale against which the environmental provisions
of mining agreements can be assessed. This has been derived by reviewing
the environmental provisions of numerous mining agreements in Australia
(see below); by examining some 30 agreements negotiated between mining
companies and indigenous groups in North America during recent decades;
636 C. O’Faircheallaigh & T. Corbett
and by reviewing relevant secondary literature (Kennett, 1999; Sosa & Keenan,
2001; Ali, 2003; O’Faircheallaigh, 2004a,b).
The scale encompasses eight possible scores, from 71 (i.e. worse than 0) to 6.
The scale includes a negative score because whereas indigenous people have
rights under general environmental legislation – for example to object to a
development, request a higher level of environmental assessment, demand
modiﬁcations to a proposed project or sue for damages arising from
environmental impacts – an agreement may limit their ability to exercise those
rights. For instance, under the terms of one agreement included in our analysis,
the Aboriginal parties undertake not to ‘lodge any objections, claims or
appeals to any Government authority . . . under any [state] or Commonwealth
legislation, including any Environmental Legislation’. Such provisions may
leave indigenous people worse oﬀ than in the absence of an agreement; hence
the need for a negative score.
Agreements may contain no provisions in relation to indigenous involvement
in or responsibility for environmental management of the projects concerned.
Such agreements, which neither detract from, nor add to, the position that
would exist in the absence of an agreement, are given a score of 0.
The positive steps on the scale are as follows.
1 The developer makes a commitment to the indigenous parties to comply
with environmental legislation, regulations and management plans. For
Table 1. Criteria for assessing environmental management provisions
71 Provisions that limit existing rights.
0 No provisions.
1 Developer commits to indigenous parties to comply with
2 Developer undertakes to consult with affected indigenous people.
3 Indigenous parties have a right to access, and independently
evaluate, information on environmental management systems
4 Indigenous parties may suggest ways of enhancing environmental
management systems, and project operator must address their
5 Joint decision making on some or all environmental management
6 Indigenous parties have the capacity to act unilaterally to deal
with environmental concerns or problems associated with a
Note: Positive provisions are ranked from 1 to 6, with each step in the scale reflecting an
increase in the likelihood that indigenous parties will overcome barriers to participation
and become substantially and effectively involved in environmental management. It is
not assumed that each step involves an identical increase in this likelihood.
Indigenous Participation in Environmental Management 637
example, one agreement provides that the developer ‘must comply with the
Environmental Authority for the project’, the environmental authority
being the authorities issued for the project under relevant state environ-
mental protection legislation.
Such provisions allow the Aboriginal parties to take legal action if they believe
that a breach of environmental legislation or regulations has occurred, because
such a breach constitutes breach of the agreement. Their inclusion can allow
indigenous people to address three problems highlighted earlier. First, their
ability to intervene covers the whole project life, and not just the environmental
assessment processes preceding project approval. Second, it addresses potential
problems with the ‘standing’ of the Aboriginal groups in legal proceedings; as
parties to a legally binding contract with the developer, their standing in
relation to any legal action is not in question. Third, it helps address the
concerns of Aboriginal people about having to rely on government regulators
to deal with breaches of environmental law or regulations.
However, provisions of this sort have a key limitation in that they do not
allow traditional owners to play a positive role in avoiding breaches of laws or
regulations and/or negative environmental impacts in the ﬁrst place, except to
the extent that a company may apply higher environmental standards in the
expectation that traditional owners might take legal action if breaches of laws
or regulations occur.
2 The project operator undertakes to consult with aﬀected indigenous people
regarding major environmental management issues, and structures (such as
consultative committees) are put in place to ensure that this happens.
Under one agreement the developer undertakes to ‘meet every 12 months
with the [Aboriginal parties]; . . . consult the [Aboriginal parties] about the
proposed work programs for the next 12 months and other issues relating
to the project; and consider the views of the [Aboriginal parties] in relation
to the matters discussed at the consultation meetings in formulating its
Such provisions create forums in which indigenous people can oﬀer under-
standings of environmental issues and impacts that reﬂect indigenous values,
knowledge and priorities. As noted earlier, these understandings may be quite
diﬀerent from those emerging from technical or ‘scientiﬁcally rational’
approaches, and may reﬂect values that run counter to the ‘ideology of
developmentalism’. They may facilitate the application of indigenous knowl-
edge in allowing project operators to meet their environmental obligations,
while at the same time ensuring that greater weight is attached to environ-
mental risks or impacts that are of particular concern to Aboriginal
However, such provisions have a serious weakness. There is no guarantee
that the project operator will respond to Aboriginal concerns, take advantage
638 C. O’Faircheallaigh & T. Corbett
of Aboriginal knowledge or heed suggestions for improving management
systems. This is likely to be a particular problem where Aboriginal values or
insights run counter to assumptions and priorities of project operators and
3 Indigenous parties have a right to access, and independently evaluate,
corporate information on environmental management systems and activi-
ties. A case in point is one company’s commitment to ‘make available to the
[Aboriginal parties] any documents, including environmental plans or
assessments submitted to government departments or authorities or plans
of proposed operations and measures to safeguard the environment in
connection with the tenements, including any notice of intent or other
document submitted to the [state government regulatory body]’.
Access to information and technical expertise can facilitate Aboriginal
participation in a number of ways. First, it can be essential in determining
whether breaches of environmental regulations are occurring or likely to occur,
and provide a ﬁrmer basis for threatening or taking legal action if this proves
necessary. Second, the information obtained may support the concerns or
positions of Aboriginal landowners, and make it harder for project operators
and regulators to ignore these. However, access to corporate information does
not of itself ensure that developers or regulators will be responsive to the
concerns or priorities of indigenous landowners.
4 Indigenous parties may suggest ways of enhancing environmental manage-
ment systems, and the project operator undertakes to implement these or
some agreed alternative. For example, in one agreement, if the developer
plans to make an application for an environmental approval to any
government agency, the developer must ﬁrst provide a draft copy of the
application to the Aboriginal parties. ‘[The company] must consider the
comments, if any, from the [Aboriginal parties] in relation to the draft
Environmental Application and amend the draft Environmental Applica-
tion taking into account these comments’.
This approach explicitly recognises the positive value of indigenous participa-
tion in environmental management. As such it addresses the ‘devaluing’ of
indigenous knowledge and values that has constituted a basic obstacle to
attempts by Aboriginal people to shape the environmental assessment and
management of resource projects. It also addresses the possibility that project
operators might ignore proposals put forward by indigenous parties through
consultative structures, by introducing a mechanism that requires the developer
to respond to indigenous initiatives. It is an approach adopted in a number of
recent Australian agreements, which also include dispute resolution procedures
for dealing with situations where suggestions by indigenous parties are not
acceptable to the operator.
Indigenous Participation in Environmental Management 639
5 There is provision for joint decision making in relation to some or all
aspects of environmental management. One Australian agreement provides
that a committee constituted of equal numbers of company and Aboriginal
representatives ‘shall have the control of environmental . . . issues raised in
association with mining and camp operations including the protection of
Under this approach, the project operator no longer makes unilateral decisions
on environmental management, possibly after consultation with or input from
traditional owners. Aboriginal landowners are now incorporated into environ-
mental decision making in a structural and permanent fashion. This is in
contrast to their historical marginalisation from such decision making, and
greatly increases opportunities for introducing Aboriginal values, perspectives
and knowledge into environmental management.
While they represent a major departure from historical patterns, joint
decision-making structures do not necessarily place Aboriginal landowners in a
position to prevent environmental damage. For example, if serious diﬀerences
emerge between the parties, time-consuming dispute resolution procedures may
be required, and their outcomes will not necessarily favour the Aboriginal
6 Indigenous parties have a capacity under speciﬁed conditions to act
unilaterally (for example, by suspending mining operations) where they
believe that environmental damage is occurring or may occur. An Austra-
lian agreement signed in June 2005 includes the provision: ‘If [the company]
contravenes any provision of this [environmental management] clause
[and] . . . if the default is likely to or may cause harm to [the Aboriginal
landowners], [the company] shall immediately cease production until the
matter is remedied to the satisfaction of [the Aboriginal landowners] acting
Provisions of this sort allow indigenous people to act themselves to protect
their traditional lands if developers or regulators do not respond to their
concerns. They can be of particular value where there is a belief that
serious environmental damage may occur if immediate action is not taken
to halt mining in general or some speciﬁc aspect of project operations,
such as use of a pipeline traversing highly sensitive areas. Such provisions
not only recognise the custodial obligations of Aboriginal landowners but
accept that in some circumstances these obligations can outweigh the
commercial imperative to maintain production. As such, they represent a
fundamental change from environmental management systems that
privilege ‘rational scientiﬁc’ knowledge and developer interests. Provisions
of this sort can have substantial eﬀects even if they are rarely (or indeed
never) invoked, because they create a compelling incentive for the
project operator to work closely with traditional owners to avoid the
640 C. O’Faircheallaigh & T. Corbett
possibility of environmental damage or risk that might lead to suspension
A number of general points should be made about this scale.
First, each point on the scale represents a broad approach, and there is scope
for variation in outcomes within each. For example, in relation to point 2,
provisions on consultation with indigenous parties may consist only of a
general statement that consultation will occur. Alternatively, they may also
encompass details regarding the issues on which consultation will occur, when
it will occur and what form it will take, and commitments to provide suﬃcient
resources to ensure that consultation is meaningful from an indigenous
perspective. In relation to point 5, joint decision making, the role of indigenous
parties may be restricted to some nominated and very speciﬁc aspects of a
project (for example, release of water into a particular creek), or could extend
to the whole of a project’s environmental management system.
Second, the diﬀerent approaches are not mutually exclusive. For example, it
may be that an indigenous party will seek a commitment to comply with
environmental legislation so that it can take legal action if adverse impacts do
occur (point 1), while at the same time wishing to contribute to enhancing
environmental systems (point 4) in order to minimise the chances that
environmental damage will happen.
However, on the other hand the scale does represent a clear hierarchy in
terms of the potential for allowing indigenous inﬂuence in relation to
environmental management, and a commitment to provisions further up the
scale will often also result in adoption of points lower on the scale even if these
are not explicitly required by an agreement. Thus it is most unlikely that a
developer would not consult with indigenous parties in relation to environ-
mental management issues (point 2) or fail to involve them in decision making
(point 5) if those parties have a capacity to halt project operations if they
believe environmental damage is likely to occur (point 6).
Environmental Provisions of Mining Agreements in Australia
Almost all mining agreements in Australia contain legally binding conﬁdenti-
ality clauses, and their presence represents a fundamental problem in learning
about, presenting and analysing agreement provisions.
Our strategy in dealing with this issue was to seek access to a suﬃcient
number of agreements so that we could discuss aggregate ﬁndings about their
content without revealing the identity or the content of individual agreements.
We have achieved this by gaining access to agreements through professional
practice as advisers and negotiators, and, in particular, by entering research
protocols with a number of leading Aboriginal land councils, allowing us to
access agreements while at the same time protecting the conﬁdentiality and
intellectual property rights of the parties to agreements. We currently have
access to 45 agreements governing the development and/or operation of mining
projects in Australia.
Indigenous Participation in Environmental Management 641
The 45 agreements were negotiated under a variety of legislative and policy
regimes and were signed over the period 1978–2003. Reﬂecting the increase in
agreement making since the introduction of the Native Title Act, about half
have been signed since 1998. No comprehensive record of mining agreements
exists in Australia, so we cannot be certain of what proportion of all
agreements our selection represents. However, it is substantial. Searches of
relevant databases and of media sources indicate that we are close to having
full coverage of agreements in New South Wales and Victoria and in many of
Australia’s major resource-producing regions, including the Pilbara and
Kimberley regions of Western Australia, the Northern Territory and the Cape
York and Central Queensland regions of Queensland. We are conﬁdent that we
are aware of the full range of provisions related to environmental management
contained in mining agreements negotiated in Australia during recent decades.
Agreements diﬀer considerably in their size and complexity, but most are
extensive documents and some run to hundreds of pages and incorporate
numerous schedules and attachments. We analysed each agreement in full,
because provisions relating to environmental issues are not necessarily
contained under a section with a heading such as ‘Environmental management’.
For example, one agreement had no such section heading, but under a heading
dealing with relations between the parties creates a joint decision-making body
that has responsibility for environmental issues related to the project.
We consolidated all provisions from each agreement relating to environ-
mental management, and then rated each agreement on the scale discussed
above. Some agreements match more than one of the criteria contained in the
scale. These were allocated to the ‘highest’ criterion that they meet. This
approach assists in gaining a clear view of the distribution of agreements across
diﬀerent points in the scale.
Table 2 provides information regarding the ratings for the 45 agreements.
Two agreements (5% of the total) achieved a negative rating, because they
contain provisions that restrict the Aboriginal parties from exercising rights
available to them under general environmental legislation. Twenty-six
agreements (58% of the total) received a score of 0 or 1, 11 of these agreements
containing no environmental provisions and a further 15 containing provisions
Table 2. Ratings for environmental management provisions in Australian agreements
between Aboriginal peoples and mining companies
Assessment criteria (score as Table 1) Number of agreements (n ¼ 45)
642 C. O’Faircheallaigh & T. Corbett
that only commit the developer to abide by environmental legislation, which
does not of itself allow the Aboriginal parties any positive role in environ-
mental management. The remaining agreements are spread fairly evenly across
criteria 2 (three agreements), 3 (four agreements), 4 and 5 (ﬁve agreements
each). None of the 45 agreements achieved a rating of 6.
At a general level, these results indicate that while some agreements include
provisions likely to create important opportunities for Aboriginal participation
in environmental management, a substantial majority do not. Only 10
agreements (22% of the total) contain provisions that require companies to
respond to Aboriginal proposals for improving environmental management
(score 4) or provide for joint decision making on environmental matters
between Aboriginal parties and developers (score 5). It would appear that the
potential for negotiated agreements to facilitate Aboriginal participation in
environmental management has not been realised in many cases.
Why should this be so? One explanation might be that Aboriginal
communities and organisations are not aware of the potential of agreements
or of the implications of using particular sorts of provisions of the type
discussed earlier and scored diﬀerentially in Table 2. This is entirely possible
given that, as far as we are aware, ours is the ﬁrst public research to present any
systematic analysis of the environmental provisions of mining agreements.
Another possibility is that Aboriginal groups are involved in deliberate
trade-oﬀs in the negotiation process, and that some groups have chosen not to
pursue an active role in environmental management in return for concession
from developers in other areas, such as ﬁnancial beneﬁts or employment and
training programmes. Given that diﬀerences in relative commitment to
environmental values may exist between individual Aboriginal groups, such
an explanation might appear plausible.
It may indeed be the case that in individual negotiations trade-oﬀs are made
between Aboriginal groups and mining companies across a range of issues. For
example, Aboriginal people may accept environmental provisions that rank at
4 on our scale, rather than ones that rank at 5, in order to secure more
favourable outcomes on cultural heritage protection, monetary payments or
Aboriginal employment and training programmes. However, we have
substantial evidence that such trade-oﬀs do not explain the pattern of
outcomes regarding environmental provisions reﬂected in Table 2. If they did,
one would expect to ﬁnd that agreements with strong environmental provisions
had signiﬁcantly weaker provisions in other areas, or conversely that
agreements with no or weak environmental provisions had strong provisions
in other areas. This is generally not the case.
As part of our broader research on mining agreements we have also
developed criteria to evaluate seven other categories of provisions that tend to
be central to agreements between Aboriginal people and mining companies
(cultural heritage protection, recognition of Aboriginal interests in land,
ﬁnancial provisions, employment and training, business development, im-
plementation provisions, and the degree of support oﬀered to developers by
Indigenous Participation in Environmental Management 643
Aboriginal parties). Without exception, those agreements that score highly
(i.e. 4 or 5) on the environmental criteria also score highly on the criteria for
these other areas, indicating that other beneﬁts have not been traded oﬀ in a
substantial way in order to achieve stronger environmental provisions. The
same conclusion emerges from the fact that agreements achieving a negative or
0 score for their environmental provisions also score poorly in relation to the
other provisions (O’Faircheallaigh, 2004a,b).
A ﬁnal and alternative explanation is that the outcomes summarised in
Table 2 are the result of diﬀerential bargaining power on the part of the
Aboriginal groups concerned. There is substantial evidence to support this
interpretation. Of the 10 agreements achieving a score of 4 or 5, all but one
were negotiated under the provisions of the Aboriginal Land Rights
(Northern Territory) Act 1996 or the Queensland Minerals Resources Act
1989, which place Aboriginal landowners in a strong position vis-a`-vis
developers, and/or they were negotiated by major, high-proﬁle Aboriginal
land councils in northern Australia, organisations that can bring substantial
political weight to bear at the negotiation table. On the other hand, the two
agreements that achieved a negative score and most of those scoring 0 or 1
were negotiated under the terms of the Native Title Act, which tends to place
Aboriginal groups in a much weaker negotiating position. Many of these
agreements also relate to projects in ‘settled Australia’ (New South Wales,
Victoria, the southern regions of Western Australia and Queensland), where
Aboriginal organisations are less likely to have the political weight to
overcome weak legal positions.
Indigenous peoples have long been marginalised from environmental manage-
ment of resource development projects that aﬀect their traditional lands. In
recent years the negotiation of agreements between indigenous landowners and
resource developers has created an alternative mechanism through which
indigenous people may be able to fulﬁl their desire and their responsibility to be
involved in minimising adverse environmental impacts from large-scale
resource development. We set out to examine the possible utility and relevance
of this mechanism, by developing a scale for evaluating the contribution of
various agreement provisions in facilitating indigenous participation in environ-
mental management. This scale was then used to examine a substantial number
of agreements between mining companies and Aboriginal interests in Australia.
Our analysis indicates that while negotiated agreements do have the poten-
tial to substantially enhance Aboriginal participation, many of the agreements
negotiated to date do not have this eﬀect. In a small minority of cases they
actually reduce opportunities for Aboriginal participation in environmental
management. In a substantial majority of cases their contribution is
non-existent, or is limited to allowing Aboriginal people to take legal action
to remedy breaches of environmental legislation after the event, or to giving
644 C. O’Faircheallaigh & T. Corbett
them a right to be consulted by developers. Less than a quarter of agreements
require developers to address proposals by Aboriginal landowners to enhance
environmental management, or create mechanisms for joint decision making
on environmental issues. No agreement included in the study provides
indigenous people with a unilateral capacity to act in response to perceived
environmental risks from mining projects, but such a provision has in 2005
appeared in one Australian agreement.
Our wider analysis of the contents of mining agreements does not indicate
that these outcomes reﬂect decisions by Aboriginal landowners to trade oﬀ
opportunities to participate in environmental management against other
beneﬁts available through negotiations with mining companies. Instead they
appear to reﬂect a lack of awareness regarding the range of environmental
provisions that can be negotiated and the diﬀerential negotiating positions of
Aboriginal people in various parts of Australia. Diﬀering negotiating positions
reﬂect, in turn, the diﬀering eﬀects of various legislative enactments, and in
particular the weak bargaining position created for Aboriginal landowners by
the federal Native Title Act, and the superior bargaining position enjoyed by
politically inﬂuential Aboriginal organisations in north and central Australia.
The authors wish to thank the Aboriginal communities and organisations that
have assisted their research, but do not name them individually to help in
maintaining conﬁdentiality. The authors also wish to acknowledge the detailed
and helpful comments of two anonymous referees.
1. In Australia negotiated agreements have generally been restricted to the mining and oil and gas
sectors. However, an agreement is currently being negotiated for a major new agricultural
development in the East Kimberley region of Western Australia.
2. Australia has two distinct indigenous populations, Aborigines and Torres Strait Islanders. When
we refer to both or to indigenous peoples more generally we use the term ‘indigenous’. This
article is conﬁned to agreements involving Aboriginal interests.
3. It is acknowledged that for many indigenous people the creation of distinct categories such as
‘social’, ‘cultural’ and ‘environmental’ has little validity, because such concepts relate to matters
that are for them inter-related dimensions of holistic relationships involving people and land (see
Randall, 2003). However, in Australia, as in most countries, separate legal and regulatory
frameworks apply to each of these spheres, and so Aboriginal people must attempt to pursue
their interests by engaging with systems of ‘environmental’ or ‘cultural heritage’ or ‘social’
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